Monthly Archives: December 2012

Can My Boss Fire Me For Smoking Marijuana?

Yes. Numerous clients have asked me that very question since the passage of I-502.

Under this law, citizens may possess and use small amounts of marijuana. Can employers terminate employment? Yes.  Employers may choose to not hire potential emplyees who use marijuana. Under Roe v. Teletech, 171 Wn.2d 736 (2011), the Washington Supreme Court recently ruled that even though medical marijuana use is legal, employers may still terminate employees for using it.

Employers are free to treat marijuana as alcohol. In other words, employees must NOT be under the influence while in the workplace, driving vehicles, or while performing tasks for their employer.

My opinion? More than ever, it’s important to consult an attorney experienced with these matters if you’re facing criminal charges and trying to protect your job. A conviction for possession of marijuana – and possibly Drug DUI – can get you fired. Reducing and/or dismissing marijuana-related charges is your safest option.

State v. Guevara: Stopping Schoolboys and Searching Them for Marijuana is Unlawful Without Probabale Cause.

Interesting search & seizure case involving a “school resource officer” who stopped the defendant and his friends for suspected drug use. The Court of Appeals decided the stop was NOT a social contact and NOT a community caretaking function.

Guevara and his friends were walking near school one morning before class. A uniformed school resource officer stopped the group and inquired what they were doing. He told them he suspected they were skipping class to smoke marijuana. The officer found drugs on Mr. Guevara. At trial, the judge denied Guevara’s motion to suppress the evidence. The trial court denied the motion on the basis that the stop was a social contact within the scope of the officer’s authority.

In suppressing the evidence, the Court of Appeals reasoned that the stop became a seizure when the officer told the boys he believed they were using drugs and sought their consent to search them. This, ruled the court, was neither a social contact nor a community caretaking function.

My opinion? Good decision. Although they may have skipped school, the boys were otherwise behaving in a lawful manner. They were not under the influence of marijuana, alcohol or any other illegal drugs. They weren’t operating a motor vehicle under the influence of alcohol, drugs or marijuana. Consequently, the officer appeared to lack probable cause to search them for possessing marijuana or any other drugs.  At worst,the officer should have merely escorted them back to school. Good decision.

Drug DUI: The Brass Tacks

Yes, I’ve blogged on this before – the passage of Washington Initiative 502 (I-502) and its impacts on DUI investigations. Consider this Part II of an ongoing discussion.

Under I-502, it is now legal to possess marijuana in small amounts. Undeniably, this opens many legal issues for motorists suspected of Driving Under the Influence of Marijuana, typically called “Drug DUI,” “stoned driving” and/or “DUI-D.” What are the legal limits of THC consumption? How do officers obtain proof of Drug DUI? How does I-502 affect minors charged with Drug DUI? What are the consequences of refusing an officer’s attempts to obtain proof of DUI-D?

Under I-502, the legal limit for THC is 5.00 nanograms. Officers obtain THC readings from blood tests administered in hospitals. Consequently, I-502 gives law enforcement officers more incentive to transport citizens to a hospital and seek a blood test if the officer suspects Drug DUI. Citizens refusing the blood test shall be charged with an upper level “Refusal” DUI for violating RCW 46.20.308, which is Washington’s Implied Consent Law. Worse, an officer now has discretion to immediately seek a warrant for a citizen’s blood. With warrant in hand, the officer may obtain a blood test from the citizen anyway, despite the citizen’s prior refusal.

Under RCW 46.20.308, which is Washington’s Implied Consent statute, the citizen’s license, permit, or privilege to drive will be revoked or denied for at least one year.  Refusal of the blood test is also admissible in a criminal trial. In the case of minors, I-502 imposes zero tolerance.

In short, the impacts of I-502 are extremely egregious. Fortunately, there’s also a lot of room for error on the part of law enforcement officers charging citizens with Drug DUI. Some of these issues – in the form of defenses – are as follows:

(1) Why did the officer initiate the pullover?

(2) Was the officer trained as a Drug Recognition Expert?

(3) What is the officer’s probable cause for arresting someone for Drug DUI?

(4) Was the citizen informed of the Implied Consent Law?

(5) What constitutes a Refusal?

(6) How did the officer obtain a warrant for a blood test?

(7) Did a licensed medical professional draw the blood?

(8) Can the Prosecutor establish the chain of custody showing who took the blood, who sealed it, and who tested it? And more, are these individuals available to testify?

(9) How does being charged with DUI-D affect citizens who are licensed to smoke marijuana; citizens who probably have elevated levels of THC in their blood anyway?

These issues, and more, affect the outcome of your case. Immediately consult an experienced criminal law attorney like myself if you’re facing Drug DUI charges.

Federal Government Mum on Washington & Denver Legalizing Marijuana

“We’ve got bigger fish to fry,” said President Barack Obama, during an interview with Barbara Walters of ABC News. In short, it’s not a major concern in his administration to continue prosecuting citizens for possessing small amounts of marijuana in states that have legalized the drug.

“This is a tough problem, because Congress has not yet changed the law,” Obama told Walters of the legalization in Colorado and Washington. “I head up the executive branch; we’re supposed to be carrying out laws. And so what we’re going to need to have is a conversation about, how do you reconcile a federal law that still says marijuana is a federal offense and state laws that say that it’s legal?”

Backers of new laws that legalized marijuana in Washington and Colorado were cautiously optimistic after President Barack Obama said Uncle Sam wouldn’t pursue pot users in those states. Following the November votes in Washington and Colorado the Justice Department reiterated that marijuana remains illegal under federal law, but had been vague about what its specific response would be.

Marijuana activists were relieved at Obama’s comments, but had questions about how regulation will work. They said even if individual users aren’t charged with crimes, marijuana producers and sellers could be subject to prosecution.

My opinion? Although it appears there’s a cautious green light for citizens in “now-legal” states to possess small amounts of marijuana, don’t light up a joint in the streets any time soon. The new law comes with many strings, bells and whistles attached making it illegal to display and/or possess marijuana in certain situations. For example, it’s not legal to smoke marijuana while walking around in public places, before driving a vehicle, etc. And the DUI implications are even more staggering.

Consult an attorney experienced attorney if you have questions regarding marijuana possession, Drug-DUI, etc.

It’s best to be prepared before imprisoned.